A National Putatitve Father’s Registry?

 

I’m really playing catch-up here–no new news.    Months ago now federal legislation was introduced to create what amounts to a national putative father’s registry.

I’ve written about the idea of putative father registries before and we’ve discussed it some.   It all ties in with the discussion of the parental rights of unmarried men, which is partly what is at issue in the ICWA case.

I’ll start with a bit of background.   Suppose an unmarried woman is going to give birth and wants to place the child for adoption.   She can go ahead and make arrangements and sign papers.   But what about the rights of the man who must have been involved in the creation of the child?   The adoption cannot be completed unless/until either his rights are terminated or we know he has no rights to begin with.

The last point may seem surprising (unless you’ve been reading here regularly) but it could well be that the unmarried man who is the genetic father has no legal parental rights at all and hence, doesn’t even have to be told about the adoption.   In general, unmarried men do not automatically acquire legal parental rights in their offspring.   (There was extensive discussion here about a Utah case (Achane) where a married man was treated as though he were not married.  You might want to look over that as it might give you a sense of the legal position of unmarried genetic fathers.)

So just to move along, the question is what exactly does an unmarried man have to do in order to acquire legal status vis-à-vis his genetic offspring?   There’s no simple answer–it varies state to state.  But in a number of states (34) he has to place his name in a putative father’s registry.   The idea here is that when he has sex with a woman, he knows conception may occur.  If he has some interest in that conception he has some options.   He could, for example, marry the woman.   He could live with her.   He could otherwise support her.  Or he could skip those things and instead send a postcard to the correct state office and say when he had sex with  her and take a guess at a possible due date for a child.

If a woman gives birth and wants to place the child for adoption, the court requires a search of the registry.  If his name is there, then a man gets notice of the adoption and presumably some right to object to the adoption.

The idea of a federal registry is that having individual states maintain their own registries just invites chaos.  Men may send notice to the wrong state (because they don’t know where the woman gives birth.)   And 16 states don’t have registries anyway.  So one national one–coordinated–would be simpler.

I would guess that anyone who favors state registries would favor a national one, but there are plenty of people who see the whole idea of registries as a terrible one.   And you can tell from the title of the legislation that it’s all quite political.  The bill is called the “Protecting Responsible Fatherhood and Promoting Adoption Act of 2012.”  And indeed, the registry is called a “National Responsible Father Registry.”  Who, after all, could object to responsible fatherhood?   Are there any supporters of irresponsible fatherhood?

The question, I think, is whether the registry idea promotes adoption at the expense of genetic fathers.   And perhaps you can now see how this ties into what we’ve been talking about in the ICWA case.

I think the question at the heart of things is this:   How much, if anything, should an unmarried genetic father be required to do before he can claim legal status as a parent?   It’s agreed, I think, that if he has legal status as a parent then the adoption cannot proceed without him.  It is also agreed that if he has no legal status vis-à-vis the child, then the adoption can proceed without him.   So again, what does he need to do to gain status?

The registry idea sets a minimum:  He must at least step forward and identify himself.   He knows he had sex.  He knows conception might have occurred (or he knows that it did).   He must then take some action to show he’s interested and wants to be included.   Signing up for the registry is the bare minimum.

There’s one obvious problem here:  How on earth would a man know to sign up?   I don’t mean to minimize this problem.   You’ll notice in the bill there is some language about a public education campaign, but you do have to wonder how real that would be.   Still, I’d like to put this problem to one side for the moment.  Let’s assume you really did do the public education.

Are these registries a bad idea?   They do make adoptions easier, because they streamline the process for notifying men who might claim parental rights.   Is that a good thing or a bad thing?   Is registering really asking too much of men?

Maybe the whole problem really is the education thing–that too many men don’t know about the registries.   If that’s so then it’s a problem and it’s a problem I think we could address.  But I have to say, if a man is planning to actually raise a child–to be a hands-on parent–then I think asking for a few simple pre-birth actions (by which I mean registering) doesn’t seem terribly unreasonable.

I know many people think the registries are terribly unfair to unmarried men, but apart from the education piece, I’m having trouble seeing it.   Do tell?

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21 responses to “A National Putatitve Father’s Registry?

  1. I think a national registry can be helpful but should not be the only criteria to strip a man of fatherhood. IF a national registry does go through then states like Utah must also remove the requirement of submitting a parental plan pleadings to the court like they do now in their three-prong requirement that includes pre-natal support.

    Having said all of that…

    I have a problem of requiring someone to have responsibilities without corresponding rights in regards to the babe, which does not happen until the babe is born. Compounding the concern is that the estimate of only 1% of babes born are placed for adoption, yet something close to 50% are born to unmarried mothers? What really bothers me though with the whole concept considering the miniscule percent that are placed for adoption is that only those fathers are required to step up and sign putative fathers registry and pay pre-natal expenses – yet all fathers are required to pay court ordered child-support if the mother parents. I don’t think you can have it both ways. It becomes unequal treatment of fathers at the hands of the mothers.

    • I think we are approaching these questions from different directions–which I do not say to suggest that you are wrong and I am right or vice versa. I just think being clear about the difference is helpful to understanding.

      From a narrow legal perspective, these registries are not about stripping men of fatherhood rights. The way the law operates in most places, these men do not have any legal fatherhood rights. (You might see this as a problem, I know.) The registries are about how men claim legal rights. If they do the required things, then they get rights. If they do not, then they don’t. In other words, the rights aren’t just automatically awarded them.

      Perhaps you are referring to this when you say that you don’t like the idea of imposing responsibilities without corresponding rights? I think the way the law is set up it reflects a view (which you may not share) that we don’t want to award a man rights just because he is genetically related to the child. The idea behind the registries is that a man must do something affirmative beyond engaging in sex to gain rights over a child–demonstrate some actual interest in being an operational parent. One option is to sign up at the registry.

      I’m going to return to this topic with another post shortly, so that’s all I’ll say about this here right now. Except to note that you are correct to observe that there may be some concerns about differential treatment raised by this. From my point of view, it’s important to attend to these sorts of equality issues but that doesn’t mean I agree that this is an instance where equal treatment is necessary. Rather, I think unequal treatment must be clearly justified.

  2. Dan in Tennessee

    My immediate response to the question of whether to have a national registry was “No! Termination of Parental Rights are largely governed by state laws. Thus it seems that a national registry would only complicate matters. “ I think I agree with the statement, however, that a national registry would simplify the whole issue, but who would maintain that registry? Would it become necessarily more complicated if the State agencies and private parties had to communicate with the Fed. Dept. of Health and Human Services, for example, before filing a termination or adoption?
    In Tennessee, we have a putative father registry and we must check it within 10 days of filing a petition for termination. It is my belief and understanding though that very few men have actually registered. It is somewhat of a spurious notion that these putative fathers will have the sophistication to register with the registry; if they cared wouldn’t they have filed a petition for visitation/paternity legitimation? Even supposing that he didn’t know about the child’s existence, is it reasonable to believe that any man would register with their state government (or national government for that matter) after having a one night stand?
    The seminal case on point here is Lehr v. Robertson (1983) which is where the US Supreme Court found that the putative father was not entitled to notice of the adoption where he had not registered with New York’s putative father registry. The Supremes drew a distinction between a parent who had a continuous relationship with a child and one who had never had a relationship. The Supreme Court also didn’t address the issue of whether the putative father registry is just a big sham. The putative father registry is the mechanism whereby the putative father gets notice, but the efficacy of the registry or the likelihood that someone actually registers is not ever addressed. In that case, I don’t suppose it matters whether it’s a national or state registry because the likelihood that a man will register is no greater or less from one v. the other.

    • Again with the twisted inconsistencies that short change the kids.

      Gee if it works so great for kids people want to adopt then lets implement it for kids who nobody wants to adopt. Let’s go ahead and make it consistent so that all minors loose their fathers and legal recognition as being their fathers children unless their fathers sign a registry. If they don’t sign the registry then they won’t be considered fathers legally and their kids won’t be owed any kind of financial support from them just like with people who are adopted.

      Men who don’t want to take financial responsibilities could abdicate responsibility for their offspring by simply failing to sign up and there would be no paternity suits or child support any more for any child who was unwanted and not cared about by their father. In fact we should do that for mothers as well to be fare so that biological parents have no accountability for their offspring unless they sign the registry within a certain amount of time and if they don’t then their kids are up for grabs. Little objects finders keepers early bird gets the worm.

      These registries are like getting junk mail that will charge you for a membership you don’t want unless you mail back the form saying “no don’t charge me” Failure to sign up could easily be a way to opt out of doing what is required of them and minors would be short changed. Minors are short changed anytime their parents fail to take care of them. I’ve reunited families where the father was at war getting shot at and did not know that his girlfriend was pregnant and his child got adopted out or sepped upon by a new husband whose name got put as father on the certificate and the child lost out the child was separated from their family when it was not necessary. The separation did not serve them in anyway. The step father could have still supported them without the title of father. The child did not have to be adopted at worst it could have just been guardianship for lack of parental consent. If no father ever surfaces to say yes or no the answer should be no – you can’t adopt this child if you do and he ever comes back he will have all the same obligations he’s suppose to have. When else do we say we will take something away from a person unless they claim it? It is not their child to take and claim. The fact that nobody is there acting as father does not mean that parenthood is totally up for grabs and the kids identity can be shanghid. If children were property which they are not then imagine someone saying I wanted to borrow your car but I could not reach you and I put a notice in the paper and you did not respond so I took your car and no you may not have it back because I’m use to it and I’ve put a bunch of money into fixing your car up for myself. Sorry if you would have taken care of your car you never would have lost it.

    • I support a national registry because there have been multiple cases of fathers who followed whatever the law was in their home state, sometimes in multiple states, only to find out the birth mother had given the baby up in a state neither bio parent had a connection to – usually Utah but I’ve seen it happen in a couple of other states as well.

      • Does it actually say anywhere in any law that the biological father of a child cannot be the legal father of his own child unless the mother of the child says OK? Do women have that veto power in fact anywhere written down if a guy proves he’s the father of a child? Because my state says anyone can request to establish paternity at any time. It does not say the Mother gets veto power.

        Also what does everyone think of the idea of a father registry for every man husband or not? And does he have to be the biological father to register? If biology does not count as Julie says then he need not even know the woman in question he can just give it the old college try and pick a kid he never heard of before.

        Why should a relationship with the mother have any bearing on whether or not a man is the father of the child? Romantic relationships fail at an astounding rate so the fact that a couple is together today does not mean they will be together tomorrow so basing parenthood on something as tenuous as romantic interest is short sighted at best. The connection should be to the child regardless of the relationship with the mother and regardless of having performed any caregiving duties because a person might still be obligated by virtue of it being him that is responsible for creating the child.

      • Right. This is clearly a problem and a national registry would at least help with that.

    • You’re surely right that Lehr is the key case here, as it tells us (quite explicitly) that genetics alone do not mean that a man is entitled to status as a legal parent, at least not as far as the US Constitution is concerned.

      You’re also right that there are a host of details that would have to be worked out. And for better or worse, most family law is state law with all the accompanying variations state to state. I’m never sure if I think that is a good thing, but I am sure it would make this idea much more complicated.

  3. I would say that the registry shoud be one of multiple avenues for the man to claim his interest in fulfilling his parental role towards the child, and he should have to do only one of them. Thus, if he provides financial support, or any of the other options, the fact that he didn’t do the registry thing should not be held against him.
    The man can sign up for the registry in his own state an the state can forward it to the national database.
    but i don’t see how this would help the men in the states that don’t have the whole concept of the registry to begin with, why would they accept the national registry?

    • I agree that a registry would be only one way and that a man need only one set of things. I think that is generally the way it works in states with registries. The idea of the registry is that it is a thing that the man could do totally on his own, without cooperation with the woman, if he wanted to protect his rights. It seems to me that if you overcome the education issue (do men know what they need to do) that the registry would allow any man who really was interested to set up his claim. A man who didn’t bother to file (again–I’m assuming knowledge of the need to file and I know that’s a big assumption) couldn’t possibly be that interested. And if he is really not interested in being a parent, then I’m not troubled by failing to grant him parental rights.

  4. Registries to not have your kids hijacked and adopted out of your family remind me of how direct mail marketing use to work where you’d be billed for something you did not want unless you mailed their form back to them with the box checked “I don’t want to save money, please don’t charge my account for this once in a lifetime offer”

    If a person fails to take care of their offspring and is nowhere to be found, I can of course see that other people might want to step in and raise the child in the absense of that parent but I don’t see why getting help from those people would erase the missing parent’s responsibilities to the child or why the child should not still be owed the attention and care of their parent even if they are not receiving that care and attention. Having someone else take over for an absent parent is an emergency measure that is not as good for the person as if their parents had simply fulfilled their obligation in the first place. There are many aspects of parenthood and kinship that cannot be satisfied by anyone else.

    of this once in a life time special offer”. Remember how companies use to send junk mail that would automatically charge your credit card or bank account if you did not mail in your written rejection of their offer to them?”

    • I know what you mean about those mailings, but it seems to me that goes to the question of knowledge and understanding. Those mailings are trickery. I would hope that a true registry would not depend on trickery and it would clearly depend on broad public education. If you arrived at a place where people knew that a man had to do something (ideally something fairly easy, but still something) to claim rights to parent (assuming he wanted rights) then surely any man who did want rights would do the thing. And if he didn’t then you could pretty well conclude that he’d be a rotten parent, couldn’t you? If he couldn’t even be bothered to send a card or go on line or whatever was required?

      As I just said elsewhere, I’m going to write more about this today so I’ll stop here now.

      • But Julie I recall a case you wrote about, in which a man in New York did a whole bunch of things to establish paternity but failed to send the postcard. He even hired an attorney. If even his attorney didn’t know to tell him about the postcard how is the information going to get to the common layperson?
        That i why I say the registry should be available in addition to other avenues to establish paternity, but not in place of them.

  5. As I understand it, the main objection is that “public education” is not merely lacking, but that states deliberately make information about them difficult to obtain (maybe not to the extent of “Beware of the Leopard”, but along those lines) and make registration difficult to perform properly, with a second objection that registering in one state has no effect in any other state and may not even have any real effect in that state. Basically, the only objection I’ve ever heard is that they’re a sham designed to create the appearance there’s a procedure available to unmarried men to establish legal fatherhood while in actuality operating to help ensure that they fail to establish it. And to be honest, Utah hasn’t helped any, what with things like the Shaud and Wyatt cases you’ve blogged about.

    So my point is, I think assuming public education would occur so as to set that problem aside seems to be ignoring a major objection based on how registries have worked in practice in order to consider minor theoretical objections. And I don’t think there are any theoretical objections, since having a registry does eliminate the problem that if the only way to establish legal paternity is through things like “He could, for example, marry the woman. He could live with her. He could otherwise support her.” then the ability to establish legal paternity is contingent on the woman’s cooperation. So in theory putative father registries are good things.

    As to a national registry, I guess it would have to either override state laws regarding registration requirements/establishment of paternity or else work like the Federal Voter Registration form where there’s a bunch of different state-specific instructions? Either way I imagine someone would challenge it in court on either federalism or enumerated powers grounds.

    • I think you could be right about what is actually happening. if you set up registries and do not do education (or do deliberate miseducation) then you have established a nice system for moving children smoothly into adoptive families. that does suggest there is reason to be wary. But it seems to me that it is also worth asking whether the problem is with the general idea of the registries or whether the problem is with how they are currently used/what the current practices re: education are. If it is the way they currently work then you can think about whether you could use them more effectively/fairly.

  6. Even if we made this registry idea consistent and no person male or female could be a legal parent of a person without first signing this national registry, what you’d have would still result in people not being treated equally. A person’s whole identity and accurate medical records and legal recognition as kin to their biological family would depend upon the intentions and feelings of their biological parents; those who are loved and wanted by their biological parents would receive the legal recognition as kin to bio family and would be named after their parents and would have aurate medical records and would have legal recognition as kin to their biological families etc, and would be entitled to financial support from both of them and those whose bio parents were uninformed or were indifferent would just be straight out of luck. So if only one bio parent was interested they’d only be entitled to one parent’s support? And what if people who were not bioparents signed the parent registry? Could they win if they were first?

    • the registry is only used in cases of adoption, as i understand, because fathers are not present at the time of the birth, so how can be identified located to determine whether they consent to the adoption, or whether they are available to care for the kid?
      It doesn’t seem that the registry is intended for any other purpose.

      • I think you are correct that as constituted the registries are meant to make it possible to be certain that an adoption is proper by ensuring that if there is a man out there who should get notice of the adoption, he gets notice. It’s not the only way to accomplish that end, but it is one way. As you say, the registries are only for adoption. Whether they could, in theory, be used for other purposes is another question.

    • There are lots of equality concerns you can raise here, because registries are for unmarried fathers only. Thus, they treat men and women differently and also married and unmarried people.

      But having said there are concerns doesn’t end the consideration. I think this is one of those areas where I am okay with differential treatment if it is carefully justified. it all depends on the level of generality at which you insist on equality. For instance, you could have a general rule–across the board, men and women–that a person must demonstrate some interest in the child before being granted legal parental rights. (I know some of you would hate this regime, but just go with me for a moment to work through the equality issues.) Having announced a scheme applying equally to all you could then examine what kinds of conduct demonstrate the concern required. You could (I think reasonably) decide that maintaining a pregnancy to term does so. In which case, women who give birth would be recognized as legal parents. But you’d need to have some list of things that men could do and you might put the registry on that list. Thus, even though it is only for men, it is really a part of a larger means of treating people equally.

  7. THE OHIO PUTATIVE FATHER REGISTRY
    THE WHAT?
    http://adoption.about.com/cs/adoptionrights/a/the_what.htm

    I think everyone should see how easy or hard it is to actual find, access, and use a registry in a state – perhaps the author of the article about the process had an agenda – perhaps it is the reality in many cases. I know when the Utah cases started happening I tried to figure out what the process was and no where did I find a detailed process to follow or where the registry could be located. I do believe Utah had their wrists slapped over this and legislation changed – but is there a clear here’s what you do process that includes what a pleading to the court includes? If you need a lawyer then that’s a problem.

    • It seems to me that setting up a registry and then hiding in (in effect) is totally unprincipled and indefensible. I don’t doubt that is what you find in some places. And I won’t defend that practice.

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